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Court of Criminal Appeal 25 August 2004

REGINA v REID

[2004] NSWCCA 301

Also reported as (2004) 148 A Crim R 425
Other
CRIMINAL LAW RECUSAL

Citation: Regina v Reid [2004] NSWCCA 301
Court: New South Wales Court of Criminal Appeal
Date: 25 August 2004
Judge(s): Spigelman CJ; Wood CJ at CL; Howie J

Background

The applicant pleaded guilty to the murder of a woman on 7 August 2002. The matter was listed before Hulme J for sentencing. Before sentencing proceeded, counsel for the applicant applied for Hulme J to disqualify himself from the hearing.

The basis for the recusal application was that Hulme J had, approximately two months earlier, sentenced a woman who had pleaded guilty to being an accessory after the fact to the same murder. In those earlier remarks on sentence, the judge had made various findings about the principal offender's conduct and character, including findings about threats he had made and that he had "bashed one woman with a hammer and slit her throat." The judge had, however, expressly noted at the time that those matters were not findings against the applicant.

Hulme J refused to disqualify himself. The applicant sought leave to appeal against that refusal under s 5F of the Criminal Appeal Act 1912, arguing the refusal constituted an interlocutory judgment or order.

  • Whether a judge's refusal to recuse himself from sentencing a principal offender, having previously sentenced a co-offender, constituted an interlocutory judgment or order for the purposes of s 5F of the Criminal Appeal Act 1912, attracting a right of appeal.
  • Whether Hulme J's earlier findings and observations in the co-offender's sentencing proceedings gave rise to a reasonable apprehension of bias sufficient to warrant disqualification.
  • Whether the principle of parity in sentencing supported the same judge sentencing co-offenders.

Decision

The Court of Criminal Appeal identified a threshold jurisdictional problem with the appeal. A refusal to recuse is not an interlocutory "order" in the ordinary sense: it does not affect the rights of parties but simply leaves the proceedings to continue before the same judge. The Court found that the refusal did not, on a proper characterisation, fall within s 5F.

Even if the jurisdictional hurdle could be overcome, the Court found no appellable error in Hulme J's decision to proceed. The judge had been careful in his earlier remarks to distinguish between the agreed and uncontested factual basis on which the co-offender was sentenced and any independent findings concerning the applicant. His Honour had expressly stated that those matters were not evidence against the applicant and did not constitute findings against him.

Spigelman CJ also emphasised the well-established principle that parity in sentencing strongly favours the same judge sentencing co-offenders. That principle, the Chief Justice observed, often requires a sentencing judge to put aside findings made in earlier related proceedings. The circumstances here, where the earlier findings were not contested and the co-offender was an accessory rather than a fellow principal, did not dislodge that principle.

Howie J added a separate observation, expressing considerable concern that the Crown had apparently joined the application for Hulme J to disqualify himself. He found it difficult to understand why the Crown would take that step in the absence of the clearest reasons in the interests of justice, given the importance of parity in co-offender sentencing.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • The Court of Criminal Appeal held that a judge's refusal to recuse from sentencing does not constitute an interlocutory judgment or order within s 5F of the Criminal Appeal Act 1912, because such a ruling does not affect the parties' rights but merely allows proceedings to continue.
  • A strong principle exists in criminal sentencing that co-offenders should, wherever practically possible, be sentenced by the same judge, and a judge is expected to put aside findings made in earlier related proceedings where appropriate.
  • Where a sentencing judge expressly distinguishes between agreed facts accepted for the purposes of a co-offender's plea and independent findings against an absent principal offender, that caution can weigh against a reasonable apprehension of bias.
  • No reasonable apprehension of bias was established on the facts: the earlier remarks were made on an uncontested evidentiary basis, and the judge had explicitly flagged they were not findings against the applicant.
  • Howie J flagged, as a matter of general concern, that the Crown joining a recusal application against a sentencing judge is a serious and significant step that requires clear justification in the interests of justice, particularly given the parity principle.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F

Cases:
- Livesey v New South Wales Bar Association (1983) 151 CLR 288
- Barton v Walker (1979) 2 NSWLR 740
- Rogerson v R (1990) 45 A Crim R 253
- Brooks v Upjohn Company (1988) 85 FCR 469
- Witness v Marsden (2000) 49 NSWLR 429
- R v Bow Street Magistrate; Ex parte Pinochet Ugarte (No 2) [2000] 1 AC 119
- Wentworth v Graham [2003] NSWCA 104
- Australian National Industries v Spedley Securities Limited (in liq) (1992) 26 NSWLR 411
- House v King (1936) 55 CLR 499
- Weininger v The Queen (2003) 212 CLR 629
- The Queen v Olbrich (1999) 199 CLR 270
- GAS v The Queen; SJK v The Queen (2004) 206 ALR 116